The communication and information processing challenges for persons with FASD may affect their ability to understand the nature and scope of their rights under the Charter of Rights and Freedom, such as their right to counsel and their right to remain silent.
An accused with FASD may not understand the words used in the reading of their Charter rights, (i.e. may not know that “counsel” means “lawyer”) (Moore, T. and Gagnier, K. 2007). “Some people with FAS think of waiving rights in terms of waving hands, that’s how concrete they are.” (Kellerman, T. 2002). An accused may also waive rights in order to appease the police, without knowing what he or she is giving up.
A typical scenario:
With a warrant out for his arrest, A. turned himself in to the police. He called his lawyer, who of course advised him to say nothing until the lawyer arrived. By the time the lawyer got there, A. had provided a video statement. (A. wanted to be helpful and had no sense of the need to listen to and follow his lawyer’s advice.”
In cases such as R. v. Henry and R. v. Sawchuk, FASD and the cognitive disabilities that come with it, have been the basis for the exclusion of incriminating statements made to police and denial of valid waiver. “High waiver standards are supported by sample Supreme Court authority and in some cases where a person with FASD talks to the police without consulting counsel, they may not knowingly and intelligently waive their right to counsel.” (Roach, K. and Bailey, A. 2009).
Police can help protect the rights of people with FASD by taking steps to ensure they understand them. “If they simply repeat what you said, ask questions that require reasoning and understanding. For example, you may want to ask an understanding question such as, ‘What does it mean to ‘waive your rights’?’ Or you may want to ask them a reasoning question such as asking them to give an example of ‘rights’, or ‘what is a lawyer?’ This is important because FASD affected individuals may be able to repeat something they did not necessarily understand.” (FASD Guide Book for Police Officers. 2002).